0120120522
03-16-2012
Ladeborah McCree, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Ladeborah McCree,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120120522
Agency No. 4C-440-0152-11
DECISION
Complainant filed an appeal with this Commission from the Agency's
decision dated September 13, 2011, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Business Mail Entry Unit Technician at the Agency’s Business Mail
Entry facility in Cleveland, Ohio.
On August 23, 2011, Complainant filed a formal complaint alleging that the
Agency subjected her to discrimination on the bases of race (Black), sex
(female), religion (Muslim), color (light skinned), disability (on-the-job
back injury), age (56), and reprisal for prior protected EEO activity
when, on July 14, 2011, Complainant received a Continued Absence Letter
(Letter) for not providing medical documentation for her absences.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. The Agency noted that Complainant failed
to allege that she was harmed when she received the letter.
The instant appeal followed. Complainant asserts that she has been
discriminated against since October 2010 when she was returned to work
outside of her medical restrictions. She included a number of events
and additional claims on appeal which were raised for the first time
on appeal. She also noted events that occurred after she filed her
formal complaint such as a pre-disciplinary investigation notification
requested by management.
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant alleged several events
for the first time on appeal that occurred prior to the event alleged
in this complaint. We note that Complainant did not raise her claims
regarding her assignment to work outside her medical restrictions until
her statement on appeal. We find that Complainant should have raised
this matter with the EEO Counselor. A review of Complainant’s formal
complaint and the EEO Counselor’s report clearly indicated that she
only alleged discrimination when she was issued the Letter. We note
that Complainant has not indicated that she has actually been subjected
to disciplinary action subsequent to the Letter or the pre-disciplinary
investigation. As such, we find that Complainant improperly raised
new claims on appeal and that the sole claim at issue in this appeal is
Complainant’s claim regarding the Letter.
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment for
which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994). The Commission finds that the complaint
fails to state a claim under the EEOC regulations because Complainant
failed to allege that she suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
See Kormos v. U.S. Postal Serv., EEOC Appeal No. 0120112423 (Nov. 23,
2011).
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s dismissal of the complaint at hand.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 16, 2012
__________________
Date
2
0120120522
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120522